What is the GDPR?

What is GDPR?The General Data Protection Regulation is a law that covers the use of personal data. It becomes law across the whole of Europe (including the United Kingdom) on 25th May 2018. The GDPR has 11 Chapters, 99 Articles and 173 Recitals.An Article gives the specific requirement in law.A Recital gives the context and background to the related ArticlesThe Chapters group the law into common themes.

What and who does the GDPR cover?

Personal data relating to a “natural person” i.e. a living individual (Article 1)

Organisations that are based in the European Union (EU) who control or process personal data (Article 3)

Organisations processing the personal data of data subjects living in the EU (Article 3)

The GDPR applies to organisations outside of the EU who process EU citizen’s data, and organisations inside the EU who process non-EU citizen’s data.

GDPR Principles (Article 5) require that personal data must be:

1) Processed lawfully, fairly and in a transparent manner in relation to individuals

2) Purpose limitation: Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes

3)Data Minimisation:Adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed

4) Data Accuracy: Accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay

5) Storage limitation: Kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals

6) Integrity and confidentiality: Processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

Article 5, Clause 2 states “the controller shall be responsible for, and be able to demonstrate, compliance with the principles.”

This means that under the GDPR, organisations must be able to deomstrate and prove that they are compliant with the 6 Principles.

Data Controller:‘Controller’ means the natural or legal persons, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State Law (Article 4, Clause 7)

This means that an organisation that decides the ‘How’ and ‘Why” personal data is processed is the Data Controller.

Data Processor: ‘Processor’ means the natural or legal person, public authority, agency or other body which processes the personal data on behalf of the Data Controller (Article 4, Clause 8)

The terms ‘processing’ relates to anything that is done to personal data, including analysing, collecting or storing the personal data.

Personal Data: “Personal Data” means any information relating to an identified or identifiable natural person: An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physiological, genetic, mental economic, cultural or social identity of that natural person. (Article 4, Clause 1)

The term “personal data’ now specifically includes health, biometric and genetic data.

Data Subject: “Data Subject” is a natural person whose personal data is processed by a controller or processor.

A data subject must be a living person.

Consent: means any freely given, specific, informed and unambiguous indication of the data subjects wishes by which he or she, by a statement or a clear affirmative action, signifies agreement to the processing of personal data relating to him or her. (Article 4, Clause 11)

Consent under the GDPR only relates to the processing of personal data. It does not include consent relating to medical treatment or intervention. Consent is not always required in order to process data. However the rules around what you do with personal data become much stricter when you rely only on consent as the lawful basis for doing the processing.

This includes personal data relating to :

Racial or ethnic origin,

Political opinions,

Religious or philosophical beliefs, or

Trade union membership, and the processing of

Genetic data,

Biometric data for the purpose of uniquely identifying a natural person

Data concerning health

Data concerning a natural person’s sex life or sexual orientation

The controller and the processor shall designate a data protection officer in any case where :

The processing is carried out by a public authority or body, except for courts acting in their judicial capacity;

The core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale; or

The core activities of the controller or the processor consist of processing on a large scale of special categories of data pursuant to Article 9 or personal data relating to criminal convictions and offences referred to in Article 10.

Every public authority (including NHS Hospitals, schools, Councils, Police and Fire Services) must appoint a DPO (Article 37). Health care data is included in the special category of data described in Article 9, so those organisations such as GP Practices, which process large volumes of special category data, must also appoint a DPO.